Opinion
NO. 19-KA-235
10-23-2019
STATE of Louisiana v. Chester BARBER
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Joel, T. Chaisson, II, Louis G. Authement COUNSEL FOR DEFENDANT/APPELLANT, CHESTER BARBER Cynthia K. Meyer
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Joel, T. Chaisson, II, Louis G. Authement
COUNSEL FOR DEFENDANT/APPELLANT, CHESTER BARBER Cynthia K. Meyer
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
JOHNSON, J.
Defendant, Chester Barber, appeals his convictions and sentences for second degree kidnapping and unauthorized use of a motor vehicle, claiming he was incompetent to proceed to trial and that his combined 42-year sentence is excessive. For the reasons that follow, we affirm Defendant's convictions and sentences.
Defendant was charged in a bill of information on December 8, 2017 with two counts – second degree kidnapping in violation of La. R.S. 14:44.1 (count one) and theft of a motor vehicle in violation of La. R.S. 67.26 (count two). The State subsequently amended count two on November 5, 2018 to charge Defendant with unauthorized use of a motor vehicle in violation of La. R.S. 14:68.4. After being found competent, Defendant proceeded to trial on November 13, 2018, and was found guilty as charged on both counts.
On February 25, 2019, the trial court sentenced Defendant to 40 years imprisonment on count one, with the first two years to be served without benefit of parole, probation or suspension of sentence, and two years imprisonment on count two to run consecutively. This appeal followed.
FACTS
In October 2017, Defendant moved to Louisiana to live with his younger half-sister, Dorothy Mackenzie. The two were not close growing up, but Ms. Mackenzie allowed Defendant to move in with her in her double-wide trailer on Paul Fredrick Street in Luling.
On the night of October 9, 2017, Ms. Mackenzie had driven her ex-husband, Bill Mackenzie's, truck to the trailer and put the keys on the kitchen table. Later that night, Defendant started to say he could not trust anyone and that the cops were going to come inside the house and get him. The next morning, Defendant approached Ms. Mackenzie right after she awoke and tied her to a chair, saying he did not want to but that he could not trust anyone. He tied both her hands behind her back, tied her legs together, and placed tape over her mouth, all while continuing to say that he could not trust anyone and that the cops were coming to get him. Defendant then left the trailer.
Ms. Mackenzie could not remember the length of time she was tied but knew that she fell over in the chair and tried to scream for help. She denied that Defendant hit her, used a weapon, or hurt her. Ms. Mackenzie was able to reach her cell phone, which was on the table a few feet away, and call her daughter, Patricia.
Patricia testified that she received the call at approximately 7:00 a.m. on October 10th. Patricia recounted that her mother was crying and told her she needed help. Patricia went to her mother's home and found a locked padlock on the outside of the front door and noted that Bill's truck was not there. She could hear her mother inside and unsuccessfully tried to enter. Patricia called 9-1-1, and police arrived at approximately 7:45 a.m.
The police were unable to remove the padlock and had to break the latch of the door to get inside. Upon entering the trailer, Deputy Adam Coley saw Ms. Mackenzie lying on the floor with her hands tied behind her back, her feet bound with a shoelace, and blue tape wrapped around her mouth. After the bindings were cut off, Deputy Coley was able to see the marks and bruises on the victim's wrists and hands from being tightly bound. It appeared that some of the blood flow had been cut off to her hands as they were cold to the touch and indentations were visible on her skin where the string was tied tight. Deputy Coley described Ms. Mackenzie as scared, very lethargic, and emotionally traumatized. She was taken out of the house on a gurney, and informed Deputy Coley at that time that it was Defendant who tied her up.
At approximately 9:00 a.m., Sergeant Giovanni Tarullo went to see Ms. Mackenzie in the emergency room and observed red ligature marks around her neck, both wrists, and right ankle. Sergeant Tarullo stated that Ms. Mackenzie was very upset and told him that Defendant had tied her up.
Meanwhile, at approximately 8:50 a.m., Captain Christian Wiggins with the Franklin Fire Department received a call to investigate a single-vehicle accident. Upon arrival to the scene, Captain Wiggins observed a gray Chevy Silverado in a ditch, and Defendant, who was not inside the vehicle at the time but nearby, identified himself as the driver of the vehicle. Defendant was apprehended by police after he attempted to flee.
Bill testified that he is the owner of the gray Chevy Silverado, and he denied that he ever allowed Defendant to drive his vehicle. Similarly, Ms. Mackenzie denied that she ever allowed Defendant to borrow Bill's vehicle on the day of the incident or at any time. After being contacted by a towing company, Patricia and Bill drove to Franklin, Louisiana, to get his vehicle. Inside the truck, Patricia observed an open duffle bag, with a large dragon knife sticking out of it, that she knew belonged to Defendant.
ISSUES
On appeal, Defendant challenges the trial court's finding that he was competent to stand trial and asserts his total 42-year sentence is excessive.
DISCUSSION
Competency
Defendant argues that the trial court erred in finding him competent to proceed to trial and assist his trial counsel. He maintains that despite the appointed sanity commission's findings that he was competent, the record clearly shows that he did not have an understanding of the proceedings and has a learning disability.
A criminal defendant has a constitutional right not to be tried while legally incompetent. State v. Carmouche , 01-405 (La. 5/14/02), 872 So.2d 1020, 1041. There is a legal presumption that a defendant is sane and competent to proceed to trial. La. R.S. 15:432. Accordingly, the defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Johnson , 14-238 (La. App. 5 Cir. 11/25/14), 165 So.3d 961, 966. Under La. C.Cr.P. art. 641, "mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." The two-fold test of capacity to stand trial is whether the defendant: (1) understands the consequences of the proceedings, and (2) has the ability to assist in his defense by consultation with counsel. State v. Bridgewater , 00-1529 (La. 1/15/02), 823 So.2d 877, 892, cert. denied , 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).
A defendant's mental incapacity to proceed may be raised by the defense, the district attorney, or the court at any time. La. C.Cr.P. art. 642 ; State v. Johnson , 10-612 (La. App. 5 Cir. 1/25/11), 60 So.3d 653, 657, writ denied , 11-316 (La. 6/17/11), 63 So.3d 1038. Although a trial court may receive expert medical testimony on the issue of a defendant's competency to proceed to trial, the ultimate decision of capacity rests alone with the trial court. La. C.Cr.P. art. 647 ; State v. Holmes , 06-2988 (La. 12/2/08), 5 So.3d 42, 55, cert. denied , 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009). The trial court's determinations as to a defendant's competency is afforded great weight, and the trial court's ruling will not be disturbed on appeal absent an abuse of discretion. State v. Anderson , 06-2987 (La. 9/9/08), 996 So.2d 973, 992.
In State v. Bennett , 345 So.2d 1129, 1138 (La. 1977), the Louisiana Supreme Court provided the proper considerations to determine whether a defendant is fully aware of the nature of the proceedings against him, which include whether he: (1) understands the nature of the charge and can appreciate its seriousness; (2) understands what defenses are available; (3) can distinguish a guilty plea from a not guilty plea and understand the consequences of each; (4) has an awareness of his legal rights; and (5) understands the range of possible verdicts and the consequences of conviction. It also listed the following factors to be considered in determining whether a defendant is able to assist in his defense:
[W]hether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
Id.
In the present case, defense counsel filed an Application for Sanity Hearing on November 21, 2017, asserting there was reason to believe that Defendant did not have the mental capacity to proceed or to assist in his defense due to the presence of a mental disease or defect. On November 28, 2017, the trial court appointed Dr. Rafael Salcedo, an expert in the field of forensic psychology, and Dr. Richard Richoux, an expert in the field of forensic psychiatry, to examine Defendant's mental capacity to proceed. A competency hearing was held on December 4, 2017, and both Drs. Salcedo and Richoux met with Defendant that morning. Ultimately, both doctors determined that Defendant was competent to proceed to trial and to assist his defense.
More specifically, Dr. Salcedo testified at the hearing that during his interview of Defendant, who was 61 years old, Defendant reported that he had been in an Ohio psychiatric state hospital from ages 12 to 17 for reasons which were unclear. Defendant also indicated that he had not received any other psychiatric treatment or felt the need for treatment since then. Defendant further reported he was illiterate because of his lack of schooling while in the psychiatric hospital. Dr. Salcedo stated that illiteracy is not a mental disorder and thus not a basis on which to find incompetency. Dr. Salcedo noted that, as was the case with Defendant, many people with a limited capacity to read are able to express themselves and understand legal proceedings.
Defendant also reported to Dr. Salcedo that he had spent a significant amount of time incarcerated for various offenses, though Dr. Salcedo did not confirm this. Dr. Salcedo theorized that Defendant, similar to others who have had significant contact with the legal system, was cynical of the justice system as he felt that he had been unfairly and inadequately represented in the past. Dr. Salcedo opined that Defendant understood the charges against him, the possible pleas he could enter, and the consequences of the various legal outcomes. Dr. Salcedo stated he was unable to find evidence that Defendant suffered from a mental disease or defect under the Bennett criteria which would affect Defendant's competency to proceed to trial or to assist his defense
Dr. Richoux testified that he fully agreed with Dr. Salcedo's assessment that Defendant was competent to proceed, did not present any psychological symptoms or behaviors, had the ability to understand the charges against him, and was able to assist his counsel. In his written recommendation to the court, Dr. Richoux wrote that Defendant expressed dissatisfaction with his legal representation. Dr. Richoux believed this resulted from Defendant's personality and his extensive criminal history, rather than the presence of a mood disorder. At the conclusion of the hearing, the trial court found Defendant was competent to stand trial and assist his attorney.
In August 2018, Defendant informed his trial counsel for the first time that he was previously diagnosed with schizophrenia. As a result of this disclosure, trial counsel filed a second Motion to Appoint Sanity Commission, and the trial court reappointed Drs. Salcedo and Richoux. A second competency hearing was held on September 21, 2018, at which time neither Dr. Salcedo nor Dr. Richoux deviated from their original opinions that Defendant was competent to proceed to trial.
During the second competency hearing, Dr. Salcedo provided more details about Defendant's cognitive abilities, stating that although he appeared to suffer from a learning disability, Defendant was a relatively intelligent individual with no evidence of any intellectual limitations. During his interview with Defendant, Dr. Salcedo re-explored Defendant's distrust toward his trial counsel and the trial judge as symptoms of paranoia and restated his previous opinion that Defendant was simply suspicious and mistrustful of the legal system. Dr. Salcedo concluded that Defendant's thoughts did not appear to come from an illogical or irrational place.
Dr. Salcedo further testified that Defendant "had absolutely no problems being able to demonstrate that he understands what he's charged with; he understood courtroom procedures quite well ... he understands how the system works very well." Dr. Salcedo explained that Defendant's lack of trust in his current attorney did not reflect an inability to assist his counsel, but rather an unwillingness to do so, as Dr. Salcedo was able to present alternative options wherein Defendant claimed he would be comfortable with the proceedings.
Dr. Salcedo acknowledged that he was unable to review any of Defendant's medical records in advance of the first or second competency hearing, though he was aware of Defendant's alleged previous schizophrenia diagnosis. Dr. Salcedo stated it was clear that Defendant did not suffer from schizophrenia, but noted that even if medical records showed a diagnosis of paranoid schizophrenia, it would not affect his determination. Dr. Richoux also denied that Defendant exhibited the "fundamental defect, which is necessary for a diagnosis of schizophrenia."
Dr. Richoux also reiterated that Defendant demonstrated an understanding of the legal proceedings and was able, though possibly unwilling, to rationally assist his counsel. He opined that Defendant's actions were based in cynicism about the judicial system rather than paranoia, and he was unable to diagnose Defendant with a mental disease or defect severe enough to prevent him from meeting the competency criteria. Dr. Richoux added that Defendant did not present as paranoid toward the doctors as his examiners, which he had observed in persons who are truly paranoid. At the conclusion of the second competency hearing, the trial court again found Defendant competent to proceed and to assist his trial counsel.
Upon review, we do not find the trial court abused its discretion in finding Defendant competent to proceed to trial under the Bennett criteria. The record shows that Defendant was fully aware of the nature of the proceedings and was able to assist his defense.
In their medical opinions, Drs. Salcedo and Richoux concluded that Defendant was illiterate and expressed a cynicism of the legal system due to prior experiences, but was not suffering with any psychotic or medical disorder. Both doctors opined that Defendant demonstrated an understanding of the legal proceedings. Dr. Salcedo testified that although Defendant displayed paranoia in regards to his trial counsel and the trial judge, he did not display paranoia towards all attorneys or all judges: Dr. Richoux did not observe any paranoia expressed toward himself or Dr. Salcedo as court-appointed examiners.
Further, in his own interactions with the trial court, Defendant acknowledged his understanding of the State's amendment to count two in the bill of information, wherein the State amended the charge from theft of a motor vehicle to unauthorized use of a motor vehicle. Defendant also indicated that he could understand the proceedings if someone would explain them to him, and he knew the benefits of the law. Throughout the proceedings, Defendant appeared to maintain his innocence, claiming that he did not know how to drive a vehicle and was not in the area of the crimes when they occurred. Defendant also argued that his trial counsel's ineffectiveness violated his constitutional rights, and at one point, he acknowledged his constitutional right to present a defense. In Johnson , 165 So.3d at 968, this Court found that the defendant was aware of his legal rights because, among other evidence, he consistently asserted that his constitutional rights had been violated. This Court noted that it stood to reason that to claim a violation of a right requires awareness of that right.
Next, in considering whether a defendant can assist in his defense under the considerations of Bennett , Dr. Salcedo stated that he was aware Defendant was having difficulties working with his attorney, but opined that this difficulty stemmed from a cynicism and skepticism frequently encountered among similar defendants rather than the presence of a mental disease or defect – Dr. Salcedo explained that he was able to present alternative options to Defendant wherein he claimed he would be comfortable with the proceedings. Additionally, the record reflects Defendant did in fact assist in his defense. At a status hearing, Defendant advised his counsel to locate a potential witness. He also alleged that the victim had charges of child endangerment in Tennessee. Providing information to locate witnesses who would challenge the credibility of the victim demonstrates Defendant's ability to assist in his defense.
The record shows that Defendant took exhaustive efforts to have his trial counsel removed as he believed his trial counsel failed to properly communicate with him or adequately plan his defense. Such actions indicate that Defendant, who had prior experience with the criminal justice system, was more than fully aware of the nature of the proceedings and the consequences which he faced. It is clear that Defendant was capable of assisting his counsel but chose not to fully cooperate because he believed his trial counsel was not advocating zealously enough on his behalf. In State v. Williams , 03-942 (La. App. 5 Cir. 1/27/04), 866 So.2d 1003, 1009, writ denied , 04-0450 (La. 6/25/04), 876 So.2d 832, this Court held that the defendant's distrust of his court-appointed attorney did not render the defendant incompetent to proceed to trial.
We find the record void of evidence that Defendant suffered with a mental disease or defect that made him unable to understand the proceedings, appreciate their significance, or to rationally aid his attorney in his defense. To the contrary, we find the record amply supports the trial court's conclusion that Defendant met the Bennett criteria for determining whether the accused is fully aware of the nature of the proceedings and is able to assist with his defense. Accordingly, we do not find the trial court abused its discretion in finding defendant competent to proceed to trial.
Excessiveness of Sentence
Defendant next argues that his total 42-year sentence is unconstitutionally excessive. Defendant maintains that maximum sentences are reserved only for the worst offenders and the most serious offenses, and that the law favors concurrent sentences for crimes committed as part of a single transaction. He concedes that he has a significant criminal history but argues that the facts and circumstances of this case do not justify the total 42-year sentence imposed, especially in light of his age and mental illness. He also argues that the trial court failed to particularize factors justifying the length of his sentences.
At the sentencing hearing, the trial court heard Ms. Mackenzie's victim impact statement, where she asked the trial court to impose a maximum sentence because she was still afraid of Defendant. The trial judge asked Ms. Mackenzie if she wanted to further explain the reason she was still afraid or if the record spoke for itself. Ms. Mackenzie responded, "The record speaks. I'm afraid. I'm afraid." The State also requested that the trial judge impose the maximum sentences on each count to run consecutively. It referenced the facts that the victim was tied and left locked inside her trailer while Defendant drove away. It also asked the trial judge to consider Defendant's 1979 convictions of robbery in Texas, his 1981 conviction of corruption of a minor in Ohio, his convictions of two counts of aggravated arson and rape in 1987, and his convictions of failing to register as a sex offender in 2008 and 2017. The State asserted that the facts surrounding the 1987 convictions were similar to the instant offense and a maximum sentence would prevent a similar incident from occurring.
Specifically, it asserted that:
In that case, a friend allowed the defendant to stay with her to get his life together after he had gotten out of jail. He forced her to stay up all night. At one point, he committed rape upon her. After it was over, he left. And when she tried to leave, they noticed a rope tied, preventing her from leaving. She, too, was locked in her home. In addition, it was found that fire was attempted to be set in part of the house. In addition to locking her in the home, he also set fire to the home as well. This happened a long time ago, but the facts are very, very similar to what we have today.
Defense counsel agreed with the State that the facts of this case were relatively disturbing but noted that the victim was not hurt by Defendant. Defense counsel asserted that a long prison sentence was essentially a death sentence for the 62-year-old Defendant and provided that Defendant would agree to a "stay-away stipulation," as it was his desire to return to Ohio.
Prior to imposing sentence, the trial court indicated that it had reviewed the pre-sentencing investigation report (PSI) and noted Defendant's extremely violent criminal history wherein he had incurred at least four prior convictions, if not more. The trial court further mentioned that it had considered the facts of the case and the victim's fear. The trial court then imposed the maximum 40-year sentence of imprisonment on count one, with two years to be served without the benefit of probation, parole, and suspension of sentence, and the maximum two-year sentence of imprisonment on count two. The sentences were ordered to run consecutively.
The PSI report is part of the appellate record, but is under seal. A PSI report is confidential under La. C.Cr.P. art. 877(A), which states that a PSI report "shall be privileged and shall not be disclosed directly or indirectly to anyone" other than the sentencing court, the victim, and other specified persons and entities. La. C.Cr.P. art. 877(C) provides that "[t]he presentence investigation report, edited to protect sources of confidential information, shall be made a part of the record if the defendant seeks post-conviction relief only on the grounds of an excessive sentence imposed by the court."
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On appeal, Defendant asserts that his 42-year sentence, which is the total length of time he was consecutively sentenced to imprisonment, is unconstitutionally excessive, and that the trial court failed to give particular reasons for the sentences. The record does not reflect that Defendant filed a motion to reconsider his sentences or objected to the length of his sentences or their consecutive nature. Defendant also did not raise the issue of the trial court's alleged failure to comply with La. C.Cr.P. art. 894.1 in the trial court. Defendant's failure to challenge the consecutive nature of his sentences below or compliance with La. C.Cr.P. art. 894.1 limits this Court to a bare review of each sentence for constitutional excessiveness.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it may be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622. A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent an abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey , 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. Id. Generally, the maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Id.
Considering these factors, we note that the facts of this case indicate that the victim, Defendant's half-sister, allowed Defendant to stay at her home although the two did not have a close relationship. While staying at her home, Defendant tied the victim's hands and feet to a chair with cords and shoelaces and taped her mouth before driving away in a truck that did not belong to him and which he did not have permission to drive. The truck was later discovered at a location approximately an hour and a half away from the victim's home. When the truck was found, a large knife was discovered inside a duffel bag known to belong to Defendant. Defendant also padlocked the door of the trailer, trapping the victim inside so she could not get out, and police had to break the latch on the door to render her aid. After she was found and her bindings cut off, bruising and indentations were observed on the victim's wrists and ankles from being tied so tightly, and she needed medical treatment. And, it is clear from the victim's impact statement that she still fears Defendant.
Additionally, Defendant, age 62 at the time of trial, has a long and varied criminal history spanning several decades. The record shows he has prior felonies of robbery, corruption of a minor, rape, aggravated arson, and failure to register as a sex offender. Additionally, Defendant's current conviction of second degree kidnapping is a crime of violence under La. R.S. 14:2(B)(16). Further, Defendant maintained he did nothing wrong during the proceedings and, although quite verbose during pre-trial proceedings, was not remorseful and did not acknowledge what occurred. In fact, Defendant stated that he wanted to pursue charges against the victim.
The sentencing range for a second degree kidnapping conviction is from five to 40 years of imprisonment at hard labor. See La. R.S. 14:44.1(C). Considering the above facts, Defendant's maximum 40-year sentence does not shock our sense of justice. Defendant's sentence is in line with other similar cases. See State v. Washington , 95-771 (La. App. 5 Cir. 2/14/96), 670 So.2d 1255, 1261-62, writ denied , 98-537 (La. 9/25/98), 726 So.2d 7 (maximum 40-year sentence for second degree kidnapping upheld where the defendant and a companion pointed a gun at the victim, ordered the victim into the his own car, and drove the victim away from the scene); State v. Brock , 37,487 (La. App. 2 Cir. 9/26/03), 855 So.2d 939, 944-45, writ denied , 04-1036 (La. 4/1/05), 897 So.2d 590 (40-year sentence for second degree kidnapping upheld for a first-time offender who broke into the 74-year-old victim's home, forced her out of her home, hit her in the head with a flashlight, and left her in a ditch). Contrary to Defendant's assertion that he did not harm the victim, he caused bruises and ligature marks from tying her up. Additionally, Defendant has a criminal history of violent crimes, including the instant conviction. Accordingly, we do not find Defendant's maximum 40-year sentence for second degree kidnapping to be unconstitutionally excessive.
We likewise find his maximum two-year sentence for unauthorized use of a motor vehicle is not unconstitutionally excessive. Defendant faced a sentencing exposure of imprisonment with or without hard labor for not more than two years and/or a possible fine of not more than $5,000. See La. R.S. 14:68.4(B). We note that La. R.S. 14:68.4 was amended by 2017 La. Acts No. 281 § 1, effective August 1, 2017 – two months before Defendant committed his crime – to reduce the maximum term of imprisonment from ten years to two years. A ten-year maximum sentence for unauthorized use of a motor vehicle was upheld in State v. Banks , 41,274 (La. App. 2 Cir. 9/20/06), 940 So.2d 111, 114-15, for a defendant who had an extensive criminal history. Here, Defendant has multiple prior felony convictions spanning many decades and did not show any remorse for his actions. We do not find his maximum two-year sentence shocks our sense of justice and, therefore, we do not find his sentence unconstitutionally excessive.
For reasons discussed earlier, we do not consider the consecutive nature of Defendant's sentences. The record clearly supports the sentences imposed, and we do not find the trial court abused its discretion in imposing the maximum sentences on each count.
ERRORS PATENT
Upon review of the record for errors patent in accordance with La. C.Cr.P. art. 920, we note two errors that require corrective action.
First, there is a discrepancy between the sentencing transcript and the State of Louisiana Uniform Commitment Order (UCO). The sentencing transcript indicates that two years of Defendant's sentence on count one is to be served without the benefit of probation, parole, or suspension of sentence. However, the UCO simply states that two years of the sentence is to be served without the benefit of probation, parole, or suspension of sentence without specifying the restriction as applying to count one. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). Therefore, we remand this matter for the correction of the UCO regarding the restriction of benefits on count one. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ; State v. Shokr , 16-337 (La. App. 5 Cir. 2/8/17), 212 So.3d 1212, 1219, writ denied , 17-0589 (La. 12/15/17), 231 So.3d 638. Additionally, we instruct the 29th Judicial District Clerk of Court to transmit the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' Legal Department. See La. C.Cr.P. art. 892(B)(2) ; State ex rel. Roland v. State , 06-0244 (La. 9/15/06), 937 So.2d 846 (per curiam ).
Second, the trial court provided an incomplete advisal under La. C.Cr.P. art. 930.8 regarding the time period within which Defendant must file for post-conviction relief. Therefore, by this opinion, we advise Defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.
DECREE
For these reasons, we affirm Defendant's convictions and sentences for second degree kidnapping and unauthorized use of a motor vehicle. We find the trial court did not err in finding Defendant competent to proceed to trial and did not abuse its discretion in imposing the maximum sentence on each count. The matter is remanded to the district court for correction of the UCO.